The apostate's property

Apostasy carries effects upon the apostate's property and acquisitions: his transactions during apostasy are suspended by the majority of the schools, his earnings are reclassified, the fate of his patrimony changes according to whether he returns to Islam or dies in apostasy, and a possible defection to the land of war overturns the whole. Each school brings its own nuances here.

The page follows the sequence of situations: acts for and without consideration, earnings during and after apostasy, debts, then the particular case of the woman apostate.

The apostate's transactions during his apostasy

The jurists disagreed about the apostate's acts during his apostasy: are they suspended, such that if he returns to Islam their validity is established, and if he does not return their nullity is established? Several views exist. The Hanafis, the Shafi'is on the sound view and the Hanbalis within the school: the apostate's acts during his apostasy, by sale, gift, manumission, testamentary administration or bequest, are suspended: if he enters Islam they are established to have been valid; if he is killed or dies upon his apostasy they are void, for the right of another attached to his ownership while his own remained: his act is therefore suspended like the sick man's donation. The Hanafis detail: the apostate's ownership of his property ceases by his apostasy, a cessation that is respected, that is, suspended, until his situation becomes clear, for apostasy ended the protection of his blood, hence that of his wealth. If he enters Islam, his properties return to their state; if he is killed or dies upon his apostasy, what he acquired during his Islam passes to his Muslim heirs, and what he acquired during his apostasy is a fifth-share booty, that is, placed in the treasury; likewise if he defects to the land of war in a state of apostasy and the defection is pronounced, for his ownership in acquisition remains after apostasy and passes, at his death, to his heirs; inheritance rests upon what precedes the apostasy, apostasy being the cause of death: the Muslim's inheritance is therefore from a Muslim; and apostasy, being the cause of death, was established as death by statute: the last of the moments of his Islam becomes, by statute, the last of the moments of his life, and the Muslim heir inherits what was his property at that moment. What he acquires during his apostasy is the acquisition of a man whose blood is lawful and in which none holds a right: it is therefore booty, like the enemy combatant's property.

The apostate's defection to the land of war

If the Muslim defects to the land of war in a state of apostasy and the judge pronounces the defection, the debts he bore are extinguished, and what he acquired during his Islam passes to his Muslim heirs; by the defection he becomes one of the people of the land of war, dead with respect to the rulings of the people of Islam, the capacity of obligation being severed as it is toward the dead: he becomes like one dead; yet the defection settles only by the judge's ruling, a return to us being possible: the ruling is therefore required. Debts contracted during Islam are paid from what he acquired during Islam, and those contracted during apostasy are paid from what he acquired during apostasy; if it does not suffice, the remainder weighs upon what he acquired during Islam, for the acquisition of Islam is the heirs' right and the acquisition of apostasy his own property: paying the debt from it is therefore more deserving; but if it does not suffice, payment then comes from the acquisition of Islam. What he sold, bought or disposed of from his property during his apostasy is suspended: if he enters Islam his contracts are valid; if he dies, is killed or defects to the land of war, they are void.

The apostate's property if he returns to Islam: when the apostate returns as a Muslim to the land of Islam after the ruling of defection, he takes back what he finds in his heirs' hands of his property in kind, the heir having replaced him only to dispense with him: when he returns as a Muslim he needs it and is preferred to him. If the heir sold it or gave it away before the return, there is no taking back: ownership has left the owner and becomes like the donee's property when it leaves him, the right of taking back falling; it is the same here; no liability upon the heir for what he disposed of before his return as a Muslim, for he disposed over the outward appearance of his ownership, like the donee. All of this applies if the defection took place and was ruled; if he returns as a Muslim before the defection has been ruled, all his property remains in its state.

The woman apostate's acts upon her property

The woman apostate who disposes of her property during her apostasy: her act is lawful, for her ownership does not cease by her apostasy; she is not killed but imprisoned and compelled to Islam; if she dies in prison or defects to the land of war, her property is inheritance for her heirs, and her husband inherits nothing from her, the separation having occurred through apostasy; unless she apostatized while ill and dies of that illness: then he inherits from her, for she intended flight; when it is the husband who apostatizes while healthy, she inherits from him, for he is killed, resembling divorce pronounced in the illness of death (al-Jawhara an-Nayyira 6/330 and 6/336, al-Ikhtiyar 4/179 and 4/181, al-Lubab 2/560-562).

Among the Shafi'is, three views exist on the continuance of the apostate's ownership of his property and the validity of his acts. The first: his property remains his and his act upon it is valid before he is placed under interdiction, for apostasy is a meaning that calls for killing without ending ownership or voiding the act, resembling the married man's fornication. The second: his ownership ceases over his property by apostasy: his act is therefore not valid, according to what is reported from Abu Bakr as-Siddiq (may Allah be pleased with him) to the delegation of Dzakha of the Banu Asad and Ghatafan: "we take as booty what we seized from you, and you take back what you seized from us"; and because his blood and wealth were protected by Islam: when the Muslims acquired his blood through apostasy, they must acquire his wealth through apostasy. The third, the most apparent and the sound in the school: his ownership and act are suspended: if he enters Islam, it is established that his ownership did not cease and his act is valid; if he dies upon apostasy or is killed for it, it is established that his ownership ceased by apostasy and his act is void, for it is the apostate's ownership, therefore suspended like his ownership of his wife's share. On this basis his properties await his death: if he dies an apostate his ownership has ceased over his properties, which become booty for the treasury; if he dies a Muslim his property is his.

The Shafi'is specify: the apostate's act without consideration is suspended: if he enters Islam it takes effect, otherwise not; his act for consideration, like sale and purchase, is void, and his property is placed with an upright custodian for safekeeping. His property is separated from his wife's, and the marriage contract between them is held suspended: if he repents and returns to Islam during the waiting period, his wife returns to him without a new contract or restitution, and the valid continuance of his original contract is established; if he does not repent during the waiting period the contract is dissolved, and it is established that the dissolution goes back to the instant of his apostasy; if he repents afterward he cannot return to her except by a new contract and a new dower. His washing, his shroud and the prayer over him are forbidden: he is not buried in the Muslims' graveyards; a pit is dug for him in a place far from the Muslims' graveyards and he is covered in it. None of his relatives inherits from him, the basis of the kinship counted in Islam, the unity of religion, having ceased; his ownership ceases over the properties in his possession by apostasy; the ruling is nevertheless executed only after his death in apostasy, which establishes that from the instant he left Islam he no longer owned what his hand held (al-Bayan 12/53-54, Rawdat at-Talibin 6/504-505, an-Najm al-Wahhaj 9/94-95, Mughni al-Muhtaj 5/433, Tuhfat al-Muhtaj 10/692-694).

The Hanbalis write: whoever apostatizes, his ownership has not ceased, but it is suspended along with his acts: if he enters Islam his ownership and acts are established, otherwise they are void. On this basis his acts during apostasy, by sale, gift, manumission, testamentary administration or bequest, are suspended: if he enters Islam they are established to have been valid; if he is killed or dies they are void, for apostasy is a cause that renders his blood lawful; his ownership has not ceased, resembling the married man's fornication and the killing of one who pays its price deliberately; the loss of protection does not entail the loss of ownership, as shown by the married adulterer, the killer in brigandage and the people of war, whose ownership stands despite the absence of protection. If the apostate defects to the land of war, his ownership has not ceased, but his killing becomes lawful for whoever can, without summons, and the seizure of his property for whoever can: he has become a combatant, his ruling being that of the people of war. Likewise, if a group apostatizes and withholds within their territory from obedience to the imam of the Muslims, their protection over their persons and properties ceases, for the original unbelievers have no protection in their territory: the apostate deserves it more (al-Mughni 9/20).

The apostate's property is seized and placed with a trustworthy person among the Muslims; if he has slave women, they are placed with a trustworthy woman, for they are forbidden to him and he cannot have access to them; the qadi mentions that his real estate, male slaves and slave women may be leased; it is sounder not to do so, the waiting being harmful to him, so that the fruits of his ownership do not slip from him in what he does not accept from it: he may return to Islam, and it would then be forbidden him to dispose of his property by the lease ordered by the governor. If he defects to the land of war, or his killing proves impossible for a long while, the governor does what he sees fit: selling the animal that requires expense, or the like, and leasing what he sees good to keep; the indentured one pays the governor; once he pays, he is freed, for he is his substitute. If he marries, his marriage is not valid, for he is not accepted regarding marriage, and whatever bars acceptance regarding marriage bars its conclusion, like the unbeliever's marriage to a Muslim woman; if he gives someone in marriage, his giving is not valid, his guardianship having ceased by his apostasy; if he marries off his slave girl it is not valid, marriage admitting no suspension, and the slave girl's marriage requiring a valid guardianship, as a woman may not give her slave girl in marriage, nor may the transgressor: the apostate has no guardianship, his state being lower than the unbelieving transgressor's (al-Mughni 9/20).

The Malikis write: the apostate is placed under interdiction during his apostasy; if he repents and returns to Islam his property returns to him according to the famous view, for the weightier position is that the apostate is interdicted by the apostasy itself: his property is suspended while his situation is examined; if he enters Islam it is returned to him. The opposite view: he is not interdicted by mere apostasy and his property is not taken from him. Ad-Dasuqi writes: there is reflection upon this: the suspension of his property by apostasy alone is agreed upon; the disagreement concerns the property's return if he repents, which is the famous view, or its becoming booty absolutely, like what is taken from the enemy in war; the first is the Mudawwana's school, the second Sahnun's. The benefit of suspending the property, even if it never returns to him, is that a debt may appear against him and be paid from it; and because, seeing his property suspended, he might imagine the suspension is made for him and return to Islam (ad-Dasuqi's hashiya on al-Sharh al-Kabir 6/289; see also at-Taj wa-l-Ikil 5/311, Sharh Mukhtasar Khalil 8/66-67, Tahbir al-Mukhtasar 5/319).

Practical note

These rules describe a property regime of the classical fiqh of the Islamic state: suspension of acts rather than immediate nullity for the majority, examination of the situation by the judge, protection of creditors' debts, full restitution in case of return to Islam. No contemporary body applies it as such, and patrimonies today are governed by national laws. The point to retain: in the schools' logic, the property consequence depends on the end of the apostate's course, not on his declaration alone, which leaves repentance its full legal effect.